Supreme Court takes up challenge to law banning promotion of child pornography

Wednesday

Oct 31, 2007 at 12:15 AM

By MARK SHERMAN

By MARK SHERMAN

Associated Press writer

WASHINGTON — The Supreme Court explored Tuesday whether it could limit the reach of a child pornography law so that it would not apply to legitimate creative expression, vivid adolescent imaginations or innocent e-mails with provocative headings.

The court took up a challenge to a provision of a 2003 federal law that sets a five-year mandatory prison term for promoting child porn. Opponents have said the law could apply to movies like "Traffic" or "Titanic" that depict adolescent sex.

The 11th U.S. Circuit Court of Appeals struck down the provision, saying it makes a crime out of merely talking about illegal images or possessing innocent materials that someone else might believe is pornography.

In the appeals court's view, the law could apply to an e-mail sent by a grandparent and entitled "Good pics of kids in bed," showing grandchildren dressed in pajamas.

Richard Diaz, the lawyer for a Florida man convicted under the law, told the court: "It captures protected speech about materials that may not even, in fact, exist."

Justices Anthony Kennedy and John Paul Stevens said they were concerned that the promotion of documentaries that showed actual atrocities could be prosecuted under the law.

"There are some terrible practices in the child-trafficking area where children are held in brothels for the most debased of acts. There are abuses in prisons, abuses in schools. If there are videotapes showing those things, it seems to me that ... they're clearly covered by the statute," Kennedy said.

Justice Stephen Breyer wondered whether dirty pictures that get passed around at school could fall under the law. "It's kind of schoolboy behavior, and they're showing this stuff around, not totally certain what it is. Suddenly that can become a federal crime," Breyer said.

Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, sought to assure the justices that the law is meant to apply to people who are peddling child pornography, principally on the Internet.

Clement said the law does not cover movies like "American Beauty," "Lolita," "Titanic" or "Traffic," each of which contains portrayals of teenagers having sex or considering it.

"If you're taking a movie like 'Traffic' or 'American Beauty,' which is not child pornography and you're simply truthfully promoting it, you have nothing to worry about with this statute," Clement said.

He urged the court to consider those challenges on a case-by-case basis, but not to endorse the appeals court decision that said the law is unconstitutional. A decision is expected by spring.

In 2002, the court struck down key provisions of a 1996 child pornography law because they called into question legitimate educational, scientific or artistic depictions of youthful sex.

Congress responded the next year with the PROTECT Act, which contains the provision under challenge in the current case.

Authorities arrested Michael Williams in an undercover operation aimed at fighting child exploitation on the Internet. A Secret Service agent engaged Williams in an Internet chat room, where they swapped non-pornographic photographs. Williams advertised himself as "Dad of toddler has 'good' pics of her an me for swap of your toddler pics, or live cam."